Abdul Kareem and 4 Others v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` TUESDAY, THE 28[TH] DAY OF MAY 2024 / 7TH JYAISHTA, 1946 ``` ``` CRL.A NO. 672 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 24.03.2007 IN SC NO.31 OF 2004 OF ADDITIONAL DISTRICT COURT (ADHOC), KALPETTA APPELLANT/ACCUSED NOS.1 TO 5: ``` - `1 ABDUL KAREEM AND 4 OTHERS AGED 53 YEARS, MURIKKAD VAKERI VEEDU,, KADALMADU, THOMADUCHAL, WAYANAD DISTRICT.` - `2 SAJEEV ANAND SO.SOMAN NAIR AGED 28 YEARS, KAYATTUTHARA VEEDU,, PAYIKOLLI, KADALMADU, THOMADUCHAL, WAYANAD, DISTRICT.` - `3 ASOKAN SO.DAMODARAN AGED 38 YEARS` - `THOTTATHIL VEEDU, KADALMADU, THOMADUCHAL,, WAYANAD DISTRICT.` - `4 ABDUL AZEEZ AZEEZ SO.MOIDEEN` - `AGED 53 YEARS, KARINGENATTIL VEEDU,, NELLIYODU, KOTTIYOOR AMSOM, KANNUR DISTRICT.` - `5 BABY MATHEW SO.THOMAS` ``` AGED 38 YEARS, KUZHIKANDATHIL VEEDU,, PAYIKKOLLI, KADALMADU, THOMADUCHAL,, WAYANAD DISTRICT. ``` ``` BY ADV SRI.RAJESH NAIR ``` ## `RESPONDENTS/COMPLAINANT AND STATE:` ``` STATE OF KERALA,REP.BY P.P.,H.C.OF KERAL ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ## `SR.PP.PUSHPALATHA M.K.` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.Appeal No.672 of 2007 2 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.672 of 2007** **-----------------------------------------------------------** **Dated this the 28[th] day of May, 2024** ## **JUDGMENT** This is an appeal filed under Section 374(2) of the Code of Criminal Procedure, 1972. The appellants were convicted by the Additional Sessions Judge (ADHOC)-I, Kalpetta, for an offence punishable under Section 489(C) r/w 34 of the Indian Penal Code, 1860 as per judgment dated 24.03.2007. They were sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.10,000/- each. 2. The prosecution was launched on finding that the appellants possessed bulk quantities of currency notes at or around 2.00 p.m. on 09.06.1999. The seizure was affected from the premises of Aiswarya cinema theatre, Sulthanbathery. PW4, the Sub inspector of Police, Crl.Appeal No.672 of 2007 3 Sulthanbathery Police Station, on getting an information that some persons were trying to transact counterfeit currency notes, reached there. Appellants 1 and 2 respectively, were found in possession of 30 and 25 notes of Rs.100/- denomination. On noticing that the said notes were counterfeit, PW4 seized the said currency notes under Exhibit P1 mahazar and arrested them. Based on the information gathered from them, appellants 3 to 5 were located in the Jeep bearing registration No.KL-10 A 5781 on the theatre premises. On searching their body, each of them was found in possession of similar counterfeit currency notes. The 3[rd] appellant was in possession of 25 currency notes and appellants 4 and 5 were in possession of 30 currency notes each. Those currency notes were also seized by preparing separate mahazars. After investigation, a final report was filed resulting in initiation of S.C.No.31 of 2004. 3. The prosecution examined 11 witnesses and produced 22 documents. Mos 1 to 9 were identified as well. During the questioning under Section 313 (1)(b) of the Crl.Appeal No.672 of 2007 4 Code, the appellants denied all the incriminating circumstances appeared in evidence against them. Their case was one of total denial. They got examined DWs 1 to 3. The trial court, after considering the evidence on record, held that the prosecution succeeded in proving that the appellants possessed counterfeit currency notes as alleged in the charge with sufficient knowledge and intention to use the same as genuine. However, the charge that they transacted the counterfeit currency notes was found against and they were found not guilty of the offence under Section 489(B) of the IPC. 4. Heard the learned counsel appearing for the appellants and the learned Public Prosecutor. 5. The findings of the trial court leading to the conviction of the appellants are assailed by the learned counsel for the appellants both on factual and legal grounds. Insofar as the recovery of the currency notes which were marked as MOs 1 to 5 series and also the recovery of 30 currency notes from the jeep, in which appellant nos.3 to 5 were sitting, they contended that the Crl.Appeal No.672 of 2007 5 evidence is totally insufficient. It is submitted by the learned counsel for the appellants that the evidence of PW 4, who is the Detecting Officer, stands alone inasmuch as the independent witnesses did not support his version. PW9, the ticket issuing clerk of the Aiswarya Theatre, who first noticed the appellants’ attempt to transact the counterfeit notes, deposed in court discrepantly. When the version of PW9 is against the case of prosecution itself, the version of PW4 cannot be trusted. Unless corroborated by independent evidence on material particulars, the evidence of a police officer cannot be believed. It is further contended that PW4 being the Station House Officer should have recorded the information he received in the General Diary. The same was not produced in the court and that further weakened the credibility of PW4 concerning the seizure and arrest. It is thus contended that since the independent witnesses did not support the case of the prosecution, the prosecution necessarily has to fail. 6. Coming to the legal aspects, the submission of the learned counsel for the appellants is that even if the Crl.Appeal No.672 of 2007 6 appellants are proved to have possessed currency notes, no offence under Section 489(C) of the IPC would be attracted for, none of the appellants knew that the said currency notes were counterfeit notes. It is pointed out that accused Nos.3 to 5 could well see the incidents transpired inside the theatre premises through its glass panes, and therefore it cannot be expected that they sat in the jeep till they were apprehended by PW4. It therefore, improbabilises the prosecution case. On the other hand, that circumstance indicates that none of the appellants had knowledge that the currency notes in their possession were counterfeit notes. 7. Learned Public Prosecutor would submit that the evidence tendered by the prosecution through PW4, proved convincingly that the appellants possessed currency notes of Rs.100/-. They were arrested in the presence of witnesses and when Exhibits P1 to P5 prepared by PW4 was admitted to have been signed by those witnesses, the same supports the evidence of PW4. True PWs 1 to 3, witnesses to the said mahazar, did not fully support the case of the Crl.Appeal No.672 of 2007 7 prosecution. Although they admitted their signatures, and also deposed to have seen police arresting a few persons, they denied having seen seizure of any currency notes. PW9 also gave contradictory statements. He stated initially that he received the currency note, but returned it later in exchange of a genuine note. Exhibit P17 is the contradiction so brought out. In the view of learned Public Prosecutor, even inspite of those contradictions, the evidence of PWs 1 to 3 and 9, insofar as the arrest of appellants from the theatre premises is concerned, tally with the version of PW4. They being hostile witnesses, their contradictory statements cannot be used to disbelieve the other witnesses. The purpose of contradictions is only to the extend of disbelieving the witness concerned and that is not a reason to discard the evidence of PW4. 8. PW4 deposed, in detail, regarding the circumstances in which he reached Aiswarya Theatre, and effected recovery and arrest of accused Nos.1 to 5. He was informed by the theatre authorities that 2 persons were found possessed with counterfeit notes and they transacted Crl.Appeal No.672 of 2007 8 those notes by purchasing tickets and buying ice creams. True, PW9 did not support the said case of the prosecution, inasmuch as he deposed that, at the time of tendering the currency note itself, he refused to accept and insisted to give genuine notes. But then the evidence of PW4, the Detecting Officer, despite searching cross examinations stands reliable. I am unable to support the view that the discrepancies in the evidence of independent witnesses have the obvious result of disbelieving PW4. His evidence gets support from the contemporaneous documents, preparation of which at the theatre premises is substantiated by the evidence of Pws1 to 3 and 9. In the circumstances, I am of the view that the evidence tendered by the prosecution is sufficient to prove that appellant Nos. 1 to 5 were found in possession of currency notes, which were seized as per Exhibits P1 to P5 mahazars. The further version of PW4 that 30 more currency notes were found in the jeep, which were seized as per Exhibit P6 seizure mahazar also stands proved. In the absence of any evidence to support the contention that appellants 3 to 5 Crl.Appeal No.672 of 2007 9 could easily escape arrest soon on noticing PW4 apprehending other appellants, cannot be accepted. Hence, the findings of the trial court in regard to the arrest and seizure are devoid of any infirmity. 9. The learned counsel for the appellants places reliance on the decisions of this Court in **Kuttan Nadar Wilson v. State** [2002 (2) KLJ 362] and **Anthru @ Abdurahiman v.State of Kerala** [2020 (4) KHC 469] as well as that of the Calcutta High Court in **Tousif alias Gara alias Tinku v.State of West Bengal** (2022 KHC 4489), in order to fortify his contention that the possession of currency notes by the appellants did not amount to an offence under Section 489C of the IPC. 10. From Exhibit P16 report which was obtained from the Currency Notes Press, Dewas, the nature of the currency notes in question can be seen. It is contended that except for the texture and the numbers, no distinguishing feature could be found on it to identify as counterfeit notes. Therefore, for possessing such notes which are not easily distinguishable, the appellants cannot Crl.Appeal No.672 of 2007 10 ## be held liable for an offence. 11. I am unable to accept the aforesaid contention. Numbers of the currency notes seized in this case are described in the respective mahazars. Exhibit P14 is the property list. The numbers are stated in it as well. 30 notes possessed by the 1[st] appellant and 30 notes possessed by the 5[th] appellant were having the same number, 3ED 838198. 25 notes possessed by the 2[nd] appellant and 25 notes possessed by the 3[rd] appellant were having the same number, 3ED 171632. Similarly, 30 notes possessed by the 4[th] appellant and 30 notes found in the Jeep were having the same number, IME 583801. When the notes were having the same number, and the quantity was bulk, they cannot plead ignorance as to the real nature of such currency notes. No deliberation is required, that each genuine currency note bears a unique number. When 30 currency notes bear common number, one can easily understand that the same are not genuine. 12. In the above regard, learned counsel for the appellants submits that no person ordinarily would verify Crl.Appeal No.672 of 2007 11 number of currency notes that come to his possession. It is true in the common course of human conduct, one may not always verify number of a currency note that comes to his possession. But that cannot have a universal application. Here is a case where appellants were in possession of counterfeit currency notes. From the circumstances came out from the evidence, it can be said that the appellants were parties of a same group. It is especially so, when currency notes possessed by appellants 1 and 2, who entered the theatre, and appellants 3 and 5 who waited in the jeep, are of common number and therefore common origin. When members of such a group possessed currency notes of such bulk quantity, only possible conclusion is that they knew the real nature of those currency notes. In the said circumstances, the law laid down by this Court in **Kuttan Nadar Wilson v. State** [2002 (2) KLJ 362] and **Anthru @ Abdurahiman v.State of Kerala** [2020 (4) KHC 469] as well as Calcutta High Court in **Tousif alias Gara alias Tinku v.State of West Bengal** (2022 KHC 4489) is not applicable to this case. Crl.Appeal No.672 of 2007 12 13. Accordingly, it is held that the appellants possessed counterfeit currency notes with the knowledge that they are counterfeit ones and also with the intention of using the same as genuine. Therefore, conviction of the appellants under Section 489( C) of the IPC is not liable to be interfered with. 14. Learned counsel for the appellants would submit that considering the circumstances of the appellants and the delay of 25 years in concluding the proceedings, the appellants are entitled to get the benefit of Section 4 of the Probation of Offenders Act. In the alternative, it is contended that the sentence is liable to be converted to one of fine. In that regard the learned counsel for the appellants places reliance on **Sunita Devi v.State of Bihar** [2024 (3) KHC SN 27 (Page No.135) (SC)]. In that case, a general direction was issued to the effect that the provisions of the Probation of Offenders Act or Section 360 of the Code, as the case may be, shall be invoked wherever those provisions are found applicable. No doubt, in the event of a conviction, the primary endeavour of the court shall be to Crl.Appeal No.672 of 2007 13 reform and reintegrate the convict to the mainstream of the society. But depending upon the nature of the offence, applicability of the provisions shall be decided. In a case where, the interest of the society at large, or the national security is involved, provisions under Probation of Offenders Act cannot ordinarily be invoked. 15. This is a case where 5 persons possessed bulk quantities of counterfeit currency notes. The source from which they obtained could not be proved by the prosecution. In the circumstances, I am of the view that this is not a fit case where the provisions of the Probation of Offenders Act can be invoked. As rightly pointed out by learned counsel for the appellants, the period elapsed after detecting the offence is too long and unjustify incarceration of the convicts for a long period. However, I am not convinced that fine alone will meet the ends of justice. Therefore, the period of imprisonment can be reduced. Accordingly, the conviction is confirmed and the substantive sentence is modified. Each of the appellants is sentenced to undergo simple imprisonment Crl.Appeal No.672 of 2007 14 for a period of one year. The orders of the trial court regarding fine and set off apply. The appeal is allowed to the above extent. **Sd/P.G. AJITHKUMAR JUDGE** SSK/28/05